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Michigan Medical Marihuana Act: Perfectly unclear

The rulings by Court of Appeals Judges Patrick M. Meter and Donald S. Owens in People v. Redden are clear enough:

defendants charged with manufacturing marijuana can invoke the Michigan Medical Marihuana Act as an affirmative defense even though they weren’t registered under the act when the police raided their home.

the prosecutor can take them to trial and try to prove that their patient relationships with the doctor who authorized their marijuana use were too tenuous to be bona fide, they possessed an unreasonable amount of marijuana and that their medical conditions didn’t warrant the doctor’s authorization.

“I concur,” said Judge Peter D. O’Connell.

And most folks would concur with what O’Connell went on to say: the MMMA is perfectly unclear.

O’Connell notes that the law is “inartfully drafted,” creates “much confusion,” is internally contradictory, and also contradicts the state Public Health Code and federal drug laws.

The police, prosecutors, defense attorneys and trial judge wrestling with the MMMA, through no fault of their own, don’t know which end is up.

And “healthy recreational marijuana users incorrectly view the MMMA as a de facto legalization of the drug, seemingly unconcerned that marijuana use remains illegal under both state and federal law.”

O’Connell’s 30-page concurrence exhaustively dissects the MMMA and makes a cogent case for legislative and administrative officials to issue a comprehensive set of administrative rules to implement the act.

It’s required reading for anyone who has an interest, academic or otherwise, in issues arising under the MMMA.

One thought on “Michigan Medical Marihuana Act: Perfectly unclear”

I disagree with your determination that the prosecutor can “take them to trial…” Redden does not say that. Redden says that the approrpiate fact finder for assertion of the Section 8 Affirmative Defense is the trial court.

In Redden, the District Court conducted a Section 8 Evidentiary Hearing (an individual is ENTITLED to an evidentiray hearing under section 8, See MCL 333.26428(b)) and then dismissed felony charges. The Circuit Court reversed the DC, on the grounds that the Circuit Court was the finder of fact in a felony case – not the District Court. The District Court could only conduct the Prelim for a determination of Probable Cause.

The Court of Appeal said that procedurally, the District Court does not have the power to conduct the evidentiary hearing on felony charges. And the ruling makes sense. You can’t ask the District Court to review the search warrant in a felony case – so why would the district court hear an evidentiary on an Affirmative Defense in a felony case. Presumably, the DC has the jurisdiction over a misdemeanor Section 8 Evidentiary hearing – but that wasn’t Redden.